Part 13

In consequence of these complaints, their lordships after hearing what each party had to alledge in its own defence; referred the further consideration thereof to three judges of the realm, viz., the right honourable Sir John Fortescue, knight, one of Her Majesty’s privy council; Mr. Justice Clench, and Mr. Justice Gawdye, in order that they might certify to their lordships in what manner the dispute between the said towns might be fairly and equitably adjusted to the reasonable satisfaction and advantages of both parties.

A LETTER of REFERENCE to SIR JOHN FORTESCUE, Knight, MR. JUSTICE CLENCH, and MR. JUSTICE GAWDIE.

After our hearty commendations.—The inhabitants of the town of Lowestoft, in the county of Suffolk, have exhibited a complaint unto us against the towne of Great Yarmouth, in the county of Norfolk, shewing, that by some unlawful courses held by the townsmen of Yarmouth, they are deprived of their antient trade of buying of herrings of fishermen in an open road before the town of Lowestoft; whereupon we have called before us of each town some two or three, with intention to make order in the controversie between them. And because the affair do consist of many points and proofs by charters, and by special statutes we have thought good to be assisted therein with the opinions of some learned in the laws, and therefore have thought good to join with you Mr. Chancellor of the Exchequer, you Mr. Justice Gawdie {74}—and you Mr. Justice Clench. And do hereby heartily pray and request you, at some convenient time this term, to call the parties before you, and effectually to appease the griefs of the plaintiff, and the answers to the other, and to hear and consider their allegations and proofs, to be delivered either by the parties themselves, or by their learned council thereupon; we pray you to certify unto us what you shall find, and with your opinions prove their differences may in equity be duly and orderly ended and compromised to the reasonable benefit of either; which we earnestly recommend unto you, and so bid you each heartily well to fare. From the Star-Chamber the second of July, 1595.

Your very loving friends,

L. ARCHBISHOP, L. ADMIRAL, L. KEEPER, L. COBHAM, L. TREASURER, L. BUCKHUST, Mr. VICE CHAMBERLAIN.

Con cordat cum origine,

THOS. WILKES.

Accordingly, soon after it was certified to their lordships by the judges, that after due consideration of the premises, and hearing the several allegations advanced by both the said towns, and their learned council, they were of opinion, that by a statute of 31st of Edward III, no persons were legally authorised to hang herrings within seven miles of the haven of Yarmouth, viz., South Town; East Town; and West Town, unless the said herrings were of their own catching.

A CERTIFICATE FROM SIR JOHN FORTESCUE, JUSTICE CLENCH, AND JUSTICE GAWDIE, CONCERNING THE CONTROVERSY BETWIXT THE TOWN OF YARMOUTH AND THE TOWN OF LOWESTOFT.

Whereas your lordships did direct unto us your letter dated the second of July last past, to examine and understand the griefs and controversies between the inhabitants of the town of Great Yarmouth, in the county of Norfolk, touching the trade of buying herrings: and to certify unto you our opinions how their differences might in equity be duly and orderly ended and compounded; we have accordingly called before us divers of the inhabitants of either of the said towns, and heard their allegations alleged by themselves, and their council learned on both sides. And it doth appear into us, that this condition between the said towns hath depended of very long time; and divers statutes hath been made in this case by parliament for the town of Yarmouth, and repealed again for the town of Lowestoft. And divers ordinances and inquisitions have been made by the king’s commission, directed to men of great authority, and afterwards revoked, and altered again by the same authority. But there was one statute made in the 31st year of Edward III, whereby, amongst other things, it is provided, that none shall hang herrings about the haven of Yarmouth by seven miles, but in the three towns of Yarmouth, except the said herrings be of their own fishing. And another Act, made in the 10th of Richard II. for revising of divers former repealed charters made to Yarmouth, in which, amongst other things, a certain place in the main sea, then by the mouth of the haven of the said town of Yarmouth, called Kirkley road, was united to the said town of Yarmouth, and by which it is provided, that none shall buy or sell herrings by way of merchandize in time of their fair, within seven miles of the said town, but only in the said haven and road. Which said two statutes we do think by the law stand still in force at this day, not repealed, nor avoided touching these points. But for unity to be made between the said towns, and for the good and common wealth of her majesty’s subjects in the counties of Norfolk, Suffolk, Essex, and the city of London, We do think in our opinions, it were good and convenient (if it may so seem good to your lordships), that orders might be given to have the said seven miles measured, to begin at some such place in Yarmouth town as your lordships shall think meet; which we think, for our parts, to be the key, where the fair of herrings is kept, and so to go towards Lowestoft; and where the said seven miles do end, to set up some apparent thing to make it known. And this being done we think it would make some quietness, because there is great contention now in this point. Also we do think it fit, that all pikers and ketches, being English, might buy upon the main sea, or coasts thereof, and also in Kirkley road, of the fishermen, fresh herrings at their pleasure, to be by them carried to what place of the realm they think good, without any let or disturbance of Yarmouth men, according to the true meaning of the statute of the 31st of Edward III, which we think would be very profitable for the fishermen, and very beneficial for her majesty’s subjects. Also we think it would make great quietness in this contention, if, by some commission or other, (as it shall seem to your honourable lordships), it might be certainly set down where Kirkley road is, and how far it doth extend. November 28th, 1595.

Concordat cum Registro Exor. JOHN WOLLEY, Keeper of the Records of the Councell Chamber.

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THE OPINION OF THE LOWESTOFT COUNSEL TOUCHING THE CONTROVERSY BETWEEN YARMOUTH AND THE SAID TOWN.

A brief being made upon the allegations of the Yarmouth men, and delivered to the judges in writing (which such allegations, in truth, were not under the hands of their councel, though they proceeded from their councel), shewing that the judges should have delivered a certificate of their opinions to the Council-Table before the Yarmouth men were gone out of London, although the judges had not sufficient time for that purpose, the Yarmouth men not presenting their allegations till the last day of term, and then deferred it till the judges were going to supper; therefore the Lowestoft men have retained Mr. Sergeant Drewe and Mr. Bargrave, her majesty’s attorney, together with Mr. Councellor Bacon, to consider the whole state of the matter, and that their opinion might be shewed as occasion should require, they have subscribed to the same, as followeth: “That by the statutes and charters aforesaid, any man may sell and buy herrings in the road called Kirkley road, or elsewhere, without the lawful let or hindrance of the town of Yarmouth; and if any proclamation be made by the said men of Yarmouth, or any other of the subjects of this realm, to the contrary, the same, in our opinion, is unlawful, whether it be within or without the time of the fair.”

CHAR DREW, JA. BARGRAVE, FR. BACON.

In order to form the better judgment of this intricate and much disputed affair, it may be necessary to observe, that by the statute of the 9th of Edward III it was enacted, “That every subject of the realm might buy and sell herrings without disturbance in city, burgh, sea-port, or elsewhere throughout the kingdom; and if any charters and patents were granted to the contrary they should be holden null; which statute was confirmed in a subsequent parliament.” Probably from some abuse of this privilege, it might become necessary afterwards to lay it under some restrictions, in view of preventing those infringements which interested persons, from lucrative motives, had made on the rights and privilege of others; and therefore to redress this grievance, the following statute of the 31st of Edward III was granted, on which the Yarmouth men grounded part of their claim, and is the statute referred to in the certificate of the judges.

STATUTE OF THE 31ST OF EDWARD III.

Edward, by the grace of God, king of England and France, and lord of Ireland—To our bailiffs of the cinque ports, and the burgesses of our town of Yarmouth, keepers of the said town, greeting, etc.

A certain concord by us and our council, made within the time of the present fair of the said town, we will have kept, etc.

That none shall go by boat nor bridge into the sea, nor unto the road of Kirkley, for to meet the fishers, to compel them, or to capture them to sell them herrings in the road of Kirkley, to the disturbance of the said fair, upon the same pain, etc.

But if the said fishers be disposed and willing to sell their herrings in the said road after that they be anchored there, it shall be lawful to the merchants of Lowestoft and Winterton, to buy any herrings in Kirkley road and Winterton, of ships so anchored there, as freely as the pycards do load their carts and horses there, which come thither from divers counties, and to hang there, provided that they sell no herrings therefore towards the sea, upon pain aforesaid, etc.

And in case that any fishers ships charged with one last and a half of herrings, or less, come into the road of St. Nicholas, and will not come into the haven for the charge thereof, and will sell the same herrings in the road that it shall be lawful for him to set up his sign, and sell the said herrings there to the merchants that will buy them.

When the judges delivered their opinions, that by this statute none should hang herrings about the haven of Yarmouth, by seven miles, etc., they meant that port of the haven near the key where the fair was kept, and not the mouth of the haven. The Yarmouth men on the contrary, insisted that the words in this statute, “and to hang there,” implied, not to hang anywhere else but near the said haven, thereby endeavouring to exclude the town of Lowestoft from the privilege of curing herrings. But the opinion delivered by the judges being found just and reasonable it was confirmed by an order of council as will be afterwards more clearly shewn. Nevertheless, it may be observed that the disputes which these statutes principally refer to, and are alluded to by the judges are those which relate to the extent of the liberties of Yarmouth. For the charter which united Kirkley road to Yarmouth haven was not granted until the 46th of Edward III. which was fifteen years after the passing of the preceding statutes.

And by an Act passed in the tenth year of the reign of Richard II (which confirmed the Act of the 46th of Edward III) it was enacted, that a certain place in the main sea, called Kirkley Road, should be united with the said town of Yarmouth; and by which Act it was provided, that none should buy or sell herrings, by way of merchandise, in time of their fair, within seven miles of the said town, but only in the said haven or road. Which two statutes they thought were still in force, and unrepealed; but yet for the sake of restoring peace and harmony between the said town, and promoting the common benefit of the kingdom in general, they recommended it to their lordships, that the said seven miles which circumscribed the liberties of Yarmouth, should be measured from the key of the said town where the herring fair is always held, towards Lowestoft; and at the termination thereof some apparent mark should be placed, in order to ascertain the exact boundaries of their liberties, and to prevent any farther disputes. And also, that they were of opinion, that by virtue of the statutes of the 31st of Edward III all English vessels were entitled to the privilege of buying fresh herrings in the middle of the sea, or coasts thereof, and also in Kirkley road, without any let or hinderance from the men of Yarmouth. And lastly, that they thought it very advisable, that a commission might be appointed to consider the premises, and to ascertain with precision the true situation of Kirkley road, in order to adjust the present differences, and to prevent any future contentions between the said towns.

This opinion of the judges was no sooner delivered, than it was opposed by the burgesses of Yarmouth with the utmost vehemence, and every method was made use of to conceal its reasonableness, and to divert its consequences, the Yarmouth men still persisting that the seven miles which terminated the boundaries of their privileges, were to be measured upon the sea, and not to be contracted by the numerous windings that would necessarily attend an admeasurement taken upon land.

Upon the starting of these objections by the burgesses of Yarmouth, their lordships were pleased to issue orders for a re-hearing of the case, which was appointed to be held before Sir John Forteseue and the other judges; who after hearing and examining what the learned counsel employed by each party had to advance in support of the demands of their respective clients, and duly considering how far their several pretensions were just and reasonable, they certified to their lordships, that they were unable to discover any legal or equitable reason why they should depart from their former opinion.

A SECOND CERTIFICATE FROM SIR JOHN FORTESCUE, JUSTICE CLENCH, AND JUSTICE GAWDY, CONCERNING THE CONTROVERSY BETWEEN THE TOWN OF YARMOUTH AND THE TOWN OF LOWESTOFT.

Whereas, upon the return of our first certificate, the men of Yarmouth opposed it, as discontented with some things therein specified: whereupon it pleased your lordships to re-commit to us the hearing of both parties; and having accordingly heard both they themselves and their learned council, at Serjeants Inn, in Chancery Lane, we do further certify, that we find no cause to alter the said certificate.

CONCORDAT CUM RESISTRO EXOR JOHN WHOLLEY, Keeper of the Records of the Council Chamber, April 30th, 1596.

In consequence of this second certificate of the judges, their lordships, on the 16th day of May, 1596, issued an order that an actual admeasurement of the said seven miles should be immediately carried into execution, and at the termination thereof towards Lowestoft, some apparent mark should be affixed, to point out the boundaries of the liberties of Yarmouth; and that the same admeasurement should commence at Yarmouth key, the place where the herring fair is usually held; and also further to ascertain the true situation of the place called Kirkley road; and accordingly a commission was granted to Sir Arthur Heneningham, Sir Henry Woodhouse, Knight, and Henry Gawdy, Esq., {78} on the part of Yarmouth; and to Sir Robert Jermyn, Sir John Higham, Knight, and Anthony Wingfield, Esq., on the part of Lowestoft, or any five or four of them, to superintend the said admeasurement, to affix the said mark, and to point out the precise situation of Kirkley road, where it beginneth, and how far it extendeth.

AT THE COURT AT GREENWICH, the 16th of May, 1596.

Present, LORD ARCHBISHOP, LORD CHAMBERLAIN, LORD BUCKHURST, LORD KEEPER, LORD COBHAM, SIR JOHN FORTESCUE.

This day John Felton and Thomas Dannett, burgesses of the town of Yarmouth, and William Wild and Thomas Ward, inhabitants of the town of Lowestoft, having been before the lords of the council, and presented to them the certificate sent down by Sir John Fortescue, Justice Clench, and Justice Gawdy, signed with their own hands, concerning the controversy before referred to them by their lordships, between the towns of Yarmouth and Lowestoft, concerning the trade of buying herrings. Their lordships having perused the said certificate, and deliberately considered of it, have approved of it in these two points: first, for the privilege of seven miles; and secondly, for a commission to be granted for finding of the right place of Kirkley road (leaving the other matter of the pikers and catchers, mentioned in the said certificate, by consent of both parties themselves). And because the question between them is concerning the measuring of seven miles where the same ought to begin (the one part saying that it should begin at the haven’s mouth, the other at the key, where and about which place, the fair is usually kept), their lordships do approve of the judgment and certificate of the said judges, that it ought to be taken from the said key, or place of their fair, in Yarmouth town; and have therefore ordered, that letters should be written and directed from their lordships unto Sir Arthur Heneningham, Knt., Sir Henry Woodhouse, Knt., and Henry Gawdy, Esq., for the town of Yarmouth; and for the town of Lowestoft Sir Robert Jermyn, Knt., Sir John Higham, Knt., and Anthony Wingfield, Esq., or any five or four of them, to undertake the measuring of the seven miles from the town of Yarmouth, according to the intention of the privilege claimed by the town of Yarmouth by their charter; and at the end of the said seven miles so measured, to affix and set down an apparent mark; and upon good examination and enquiry, to set down and define the place where Kirkley road is, which the charters of Yarmouth mentioneth; where it beginneth, and how far it extendeth.

Ex. Sipe. THO. SMITH.

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FROM THE COURT AT GREENWICH, the 16th day of May. 1596.

Present, JOHN CANTERBURY, WM. CEICELL, THO. BUCKHURST. THO. EGERTON, WM. COBHAM, J. FORTESCUE.

To our very loving friends, Sir Arthur Heneningham, Sir Henry Woodhouse, Sir Robert Jermyn, Sir John Higham, Knts., Henry Gawdy and Anthony Wingfield, Esqs., or to any five or four of them.

After our hearty commendations.—Whereas, upon some controversy between the towns of Yarmouth and Lowestoft, concerning the trade of buying herrings, we have referred the consideration thereof to our very loving friends Sir John Fortescue, Knt., Justice Clench, and Justice Gawdy, who have accordingly returned certificates of their opinions of the matter, which herewith we send unto you; we have now, by the consent of both parties, made choice of you, as fit persons to execute the determination of the said certificates and do therefore pray and request you, or any five or four of you, with all convenient expedition to undertake the pains of measuring the seven miles from the town of Yarmouth sideway {79} according to the intention of the privilege claimed by the town of Yarmouth, by their charters; and at the end of the said seven miles so measured, to fix and set down apparent marks; and also upon good examination and inquiry to set down and define certainly where Kirkley road is which the charter of Yarmouth mentioneth; where it beginneth, and how far it doth extend. And of these two material points, and to certify your opinion and proceedings there upon such further orders shall be given therein as we shall think requisite. And so we bid you heartily farewell.

From your loving friends, etc.

But the burgesses of Yarmouth being conscious that they were prosecuting a claim for which they had neither a legal nor equitable pretension; and being also apprehensive, that if the affair was carried before the said commissioners, and submitted to a strict and impartial investigation, it would terminate greatly to their disadvantage; therefore they resolved as there was but little prospect of being successful in the enquiry, they would exert every effort in their power to retard and embarrass it; and that the most effectual mode for accomplishing their designs would be to counteract the commission; and accordingly, in a subsequent application to the Privy Council for redress of grievances, they transmitted such a partial representation of the case, as to obtain from their Lordships an order for a new commission. In this second commission we find, that an alteration was made in the appointment of commissioners; for in the place of Anthony Wingfield, Esq., one of the commissioners nominated in the first commission on the part of Lowestoft, William Rowse, Esq., was appointed in this second commission, a person partially attached to the interest of Yarmouth. And whereas, by the first commission, any four or five of the commissioners had a power of deciding any point relative to the dispute; but by the second commission it was ordered, that they should be unanimous; and also it was further directed by the first commission, that the inquiry should determine the two principal points in dispute, viz., the admeasurement of the seven miles and the true situation of Kirkley road; whereas the burgesses of Yarmouth, by this second commission so ordered the business, that when the parties appeared before the commissioners, they confined the inquiry solely to the situation of Kirkley road, and withheld from them every information that related to the admeasurement of the seven miles; and also had given previous directions for Mr. Rowse to be absent from the meeting, which consequently rendered every resolution of the Commissioners void, as by the commission they were directed to be unanimous.

To Sir Arthur Heneningham and Sir Henry Woodhouse, Knts., and Henry Gawdy, Esq., and to Sir Robert Jermyn, and Sir John Higham, Knts., and William Rowse, Esq.